Yesterday we had a discussion about what kind of evidence we might use to determine that there are, or are not, problems with the current FS NEPA-Litigation process. Another way to see if there are problems is to ask people directly “what are the problems you perceive?” The EADM Roundtables that the Forest Service conducted a few years ago received much input about the problems people saw, as well as suggestions as to what to do about them.
Here’s an op-ed by Jack Smith and Holly Fretwell from last week:
After more than 15 years of delay, the Bozeman Municipal Watershed Project will finally move forward this spring—a victory for the U.S. Forest Service, wildfire resilience, and above all, the people of Bozeman.
And they specify what they see as the downsides of litigation (note, not NEPA):
But litigation has at least three serious downsides. First, it’s slow. And for a city like Bozeman, delays carry a potentially enormous cost. As appeals have played out, Bozeman has continued to face real risk from wildfire, illuminating the need for quicker processes to resolve conflict and develop collaborative forest management solutions.
Litigation also costs the Forest Service, taking time and dollars away from forest management. In a day and age when wildfires consume an ever-larger portion of the agency’s budget, dollars that remain would be most wisely spent getting ahead of wildfire risk rather than defending projects that aim to do so.
Last, the added delays and uncertainty caused by litigation can hold back partners, like the city of Bozeman, who want to invest in wildfire resilience but who need to know what the Forest Service will do in order to plan complementary work.
They acknowledge that litigation had value:
These repeated legal challenges have ultimately deepened the project’s environmental analysis and assuaged concerns about the project’s impacts, particularly on endangered species.
I assume that somewhere along the line, the proposal itself had changed for the better, not just the documentation.
I think we’re all familiar with their first and second points. What I think hasn’t been explored much, though, is the impact of Litigation-Induced-Uncertainty (about time, place, and if at all) on the efforts of other entities. Clearly this has been problematic for people who work in the timber industry, and they have been pretty open about that. But what’s it like to have the Forest Service trying to do something for 15 years for those potentially impacted from fire, sediment, and so on, and other landowners who want to plan what to do?
In a recent report by PERC, Fix America’s Forests, we suggest multiple ways Congress can help the Forest Service avoid long delays without sacrificing litigation’s important role. A good place to start would be to clarify how courts should decide whether to block forest restoration projects while deficiencies revealed by litigation are fixed.
Currently, when a court finds that a project’s environmental analysis is insufficient in some way, it has to decide whether to block the project or to allow it to proceed while the agency performs additional study. Congress could clarify how courts should weigh the risk of delay versus its potential benefits when making this decision. Congress could also require that challenges to forest restoration projects be filed quickly after those projects are approved, giving the Forest Service and partners early notice of whether litigation will affect a particular project.
My bold.. do you think it’s possible to agree that speeding up the process would be a good thing? Is 15 years to plan a 4,700 (?) acre fuel treatment project too long? And if so, what are your ideas for speeding things up?
One more thought: if reducing wildfire extent helps with climate change, and if dealing with large fires is adapting to climate change, then wouldn’t we want to speed up climate mitigation and adaptation if possible?